Arrest records are generally open to the public unless they concern an active or ongoing investigation. A few states restrict the information that can be obtained from an arrest record, especially when it concerns individuals who were never charged, were acquitted or had their records expunged. Again, the determination will often result in a balancing test comparing the public’s interest in disclosure against the individual privacy interest.
In Vermont, for example, arrest records are open unless they are part of an ongoing investigation. In Caledonian Record Publishing Co. v. Walton, the Vermont Supreme Court held that, in general, arrest records are the product of the investigation, rather than part of an ongoing investigation, so the records are presumptively open. Oklahoma, Arkansas and Ohio courts have also ruled to allow access to arrest records.3
Wisconsin and Texas courts follow a slightly different approach, where access to general arrest sheets has been allowed when searching into a specific incident, but the courts have been less persuaded when the request concerns personal histories and arrest records. In Newspapers Inc. v. Breier, the Wisconsin Supreme Court held that the police must allow inspection of the police blotter and a chronological list of arrests. The court, although not ruling on the matter, expressed doubt about whether a request for an individual’s personal arrest history would pass a balancing test between public and private interests.
Much like the Wisconsin court, the Texas Court of Civil Appeals held in Houston Chronicle Publishing Co. v. City of Houston that some information may be released to the public, but other more detailed information must remain confidential due to privacy concerns. On one hand, the court held that when researching a specific incident, the arrest sheet was not exempt from the state’s public records law: “The press and the public have a constitutional right of access to information concerning crime in the community, and to information relating to activities of law enforcement agencies.”
However, the court held that personal histories and arrest records of individuals are exempt from disclosure: “A holding that the Personal History and Arrest Record must be open to inspection by the press and public would contain the potential for massive and unjustified damage to the individual.”
Joseph Larsen, special counsel at the law firm of Sedgwick, Detert, Moran & Arnold, L.L.P. in Houston said that the Houston Chronicle decision set the pattern for everything that followed in Texas regarding access to police documents. Larsen, who also works with the Freedom of Information Foundation of Texas, says the state attorney general’s office in Texas has taken the Houston Chronicle precedent even further by systematically broadening the category of records that are being withheld from the public, including mug shots and autopsy reports, which Larsen believes violate the public’s rights to access.
“The [attorney general’s office] very rarely rules against law enforcement,” said Larsen. “The public is being deprived of this information when I think the law requires its release.”
One of Larsen’s biggest complaints is that he feels the state attorney general’s office and the police departments are misinterpreting the Houston Chronicle ruling and denying access to records that do not properly fit into an exemption. Arrest histories, which are exempt in Texas and most other states, and arrest records, which are not, are very different, Larsen said. Arrest records are the records that are stored by police departments after an incident, whereas arrest histories “are almost like work product,” Larsen said. They involve the accumulation of records from all over the state and country.
Larsen pointed to a few examples of what he believed were instances where the police wrongly denied access to information. But few cases make it past the attorney general’s review in Texas. He says the cost of an appeal is often prohibitive to newspapers and other media companies, and there’s just too much bad law on the books.
When records are found to be exempt, it is generally because the court found that the records were part of an open investigation. The federal Freedom of Information Act and most state open records laws have an exemption for ongoing investigations. In Texas, the law requires that only basic information must be released and additional information will only be released when there is either a conviction or a deferred adjudication, Larsen said.
Arrest records contain personal information and courts have held that the risk inherent with releasing information that is not always up-to-date and can be highly prejudicial to individuals if they are released because an arrest records does not always reflect instances where charges have been expunged or an individual was pardoned, was never charged or was acquitted. Courts have relied on this reasoning in keeping some records secret, but Larsen feels the police have other reasons for wanting these records kept confidential.
Law enforcement is protective of its own and keeping these records confidential keeps other issues out of the public eye as well, like use of force and other problems that may arise in the course of an investigation, he said.
“The police are arguably the most powerful part of the government because they can take your stuff away - take you away,” Larsen said. “It is extremely important that law enforcement be accountable.”
Arrest records, Larsen says, are just one of the many things that the Texas government is keeping out of the hands of reporters and out of the hands of the public. “If we’re going to limit government, we’ve got to know what it’s doing,” he said. “You can’t have a limited government if the government controls all the critical information.”